The TEMPTATIONS THE ULTIMATE COLLECTION RECORDINGS 1964 75

The TEMPTATIONS THE ULTIMATE COLLECTION (RECORDINGS 1964 -75) REMEMBER CLOCKS FALL BACK SUNDAY 3: 00 AM 2: 00 AM Enjoy Your Extra Hour of Sleep!!

Hadacheck v. Sebastian DQ 100: Introduction (Krypton) Effects of the Challenged Action • Government action in Hadacheck: (p. 101) L. A. Ordinance banning operation of brickyard in city • What limits are placed on the petitioner’s use of his property? • What uses of his property are still permissible? • What is the harm to the petitioner?

Hadacheck v. Sebastian DQ 100: Introduction (Krypton) Effects of the Challenged Action • What is the harm to the petitioner? • Incarceration! • Claim re Value: • Property worth $800, 000 as brickworks • Worth $60, 000 as anything else • NOTE: Courts don’t necessarily accept value claims

Hadacheck v. Sebastian DQ 100: Introduction (Krypton) • (1915) Claim re Property Value (PV): • Property worth $800, 000 as brickworks • Worth $60, 000 as anything else • Claims re Loss of PV Often Short Term • PV Fluctuates Significantly Over Time • This was new part of LA; must have increased sharply at some point

From John Criste: Brickworks Site Today: West Pico & Crenshaw Blvds. , L. A.

Hadacheck v. Sebastian DQ 100: Introduction (Krypton) Fit Into Demsetz Takings Story? • Activity is Brickmaking • Externalities: Some dust reaches nearby residents • Old Rule: Brickworks Allowed to Operate if There First • Change leads to rising externalities? • Creates a demand for a change in the law? • After the change, people affected by the new law complain that their property rights have been taken. (= Hadacheck Litigation)

Hadacheck v. Sebastian Procedural Posture • Hadacheck convicted for violating ordinance • Files Habeas Petition w California SCt; Loses • Appeal to US SCt – Claim that state law violated US Constitution – At time, automatic appeal rather than pet’n for certiorari

Hadacheck v. Sebastian Procedural Posture • Hadacheck convicted for violating ordinance • Files Habeas Petition w California SCt; Loses • Appeal to US SCt • Status of Allegations in Petition (pp. 102 -03) – p. 103: “substantial traverses” – Cal SCt found otherwise on health etc. – US SCt says these findings supported by evidence

LOGISTICS: CLASS #28 • Wednesday DF Sessions shifting earlier to 9: 00 a. m. to directly follow class. • I’ll Adjust Assignment Sheet for Next Week as Necessary After Today (Elective Choice) • Group Assignment #3 – Assignment #1: Formatting Penalties on 12/28 – Assignment #2: Formatting Penalties on 14/28 –QUESTIONS? ?

Hadacheck v. Sebastian URANIUM: DQ 101 -03 Reasoning; Possible Holdings & Rules

Hadacheck v. Sebastian: Reasoning DQ 101 (Uranium) Discrimination Claim • Petitioner Says: – I was singled out; ordinance passed to stop me – Other brickworks in other districts treated differently • How did the court deal with this claim? – Cal SCt found ordinance not arbitrary/discriminatory – US SCt said sufficient evidence supports that finding

Hadacheck v. Sebastian: Reasoning DQ 101 (Uranium) Arbitrariness/Discrimination Claims • Made Frequently (Hadacheck, Miller, Penn Central) • Hard to Win – Must Be: • Explicit Direct Attack on Someone -OR • Very Random Exercise of Govt Power – Rare Example: Eubank (cited in Miller) complete delegation of zoning decision to neighbors with no govt oversight

Hadacheck v. Sebastian: Reasoning DQ 101 (Uranium) Arbitrariness/Discrimination Claims • Made Frequently But Hard to Win • Generally OK to draw rough but plausible distinctions – E. g. , Between people under/over 21 years old – E. g. , Between neighborhoods – E. g. , Between types or size of brickworks, etc. – Unless courts have found distinction problematic under Equal Protection Clause or First Amdt (race; religion, etc. )

Hadacheck v. Sebastian: Reasoning DQ 101 (Uranium) Arbitrariness/Discrimination Claims • Made Frequently But Hard to Win • Generally OK to draw rough but plausible distinctions • I won’t (intentionally) make arbitrariness a serious issue on final; don’t spend time on it!!

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power (p. 104) • “[O]ne of most essential powers of government—one that is the least limitable. ” (p. 104) • “A vested interest cannot be asserted against it because of conditions once obtaining. ” – MEANS?

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power (p. 104) • “A vested interest cannot be asserted against it because of conditions once obtaining. ” • Compare “Coming to the Nuisance” – Defense for Private Nuisance – Not defense for Public Nuisance

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Reinman • Little Rock bans livery stables – Related to Change from Horses to Cars – Similar Facts Alleged re Loss of Property Value – US SCt says OK under Police Power • Why does Petitioner in Hadacheck say L. A. Ordinance Distinguishable?

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Reinman • Little Rock bans livery stables; US Sct says OK • Petitioner: L. A. Ordinance Distinguishable b/c Brickworks Tied to Particular Location (Clay Pits) • But Court Responds: Not Impossible to Run Business Elsewhere • Reliance on Reinman suggests that under Police Power, OK to severely reduce value by eliminating current use.

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Kelso • San Francisco banned operation of rock quarry • Cal. S. Ct. said unconstitutional • Why Distinguishable from Hadacheck ?

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Kelso • San Francisco banned operation of rock quarry • Cal. S. Ct. said unconstitutional; distinguishes Hadacheck because: – In Kelso, if you can’t quarry, rock is valueless – In Hadacheck, clay still has value; can remove & process elsewhere

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Kelso • Cal. S. Ct. draws distinction between – Limit on use of land; and – Complete elimination of value • US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning?

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Kelso • Cal. S. Ct. draws distinction between limit on use of land complete elimination of value • US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning? – Explicitly reserves Q in last paragraph of opinion – Does note clay still is available & has value

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Kelso • Cal. S. Ct. draws distinction between limit on use of land complete elimination of value • Distinction raises important recurring Q: In deciding if value remains, do you look at: – All property owned by claimant (quarry + rock) – Particular property most directly effected (just rock) – Still value left in quarry, but not in rock.

Hadacheck v. Sebastian: Reasoning DQ 102 (Uranium) Hadacheck & the Police Power: Kelso • Important recurring Q: In deciding if value remains (or amount of value lost), what portion of claimant’s property do you look at? • We’ll call this the “denominator” question: – What do you use as denominator in fraction showing how much property is lost (or is left)?

Hadacheck v. Sebastian: Holding/Rules DQ 103 (Uranium) What rules or principles can you derive from Hadacheck to use in future cases? • Start with very broad holding: Any exercise of police power is Constitutional if not arbitrary. • Narrower Versions?

Hadacheck v. Sebastian: Holding/Rules DQ 103 (Uranium) • Exercise of police power Constitutional if not arbitrary. – Exercise of police power Constitutional if not arbitrary and related to human health & safety – Exercise of police power Constitutional if not arbitrary and related to substantial concerns re human health & safety – Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance/ harmful use of land – Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance in residential neighborhood. (Burns B 2)

Hadacheck v. Sebastian: Holding/Rules DQ 103 (Uranium) Other possible rules or principles?

Hadacheck v. Sebastian: Holding/Rules DQ 103 (Uranium) Some possible rules or principles: • Prohibiting existing use not automatically unconstitutional • Large decrease in property value not automatically unconstitutional • Maybe: Unconstitutional if all value removed • Private interests must yield to progress & good of community (cf. Shack)

Hadacheck v. Sebastian: Holding/Rules DQ 103 (Uranium) Apply rules/principles from Hadacheck to “Airspace Solution” • Exercise of police power Constitutional if not arbitrary. – Exercise of police power Constitutional if not arbitrary and related to human health & safety – Exercise of police power Constitutional if not arbitrary and prohibiting nuisance/ harmful use of land – Maybe: Unconstitutional if all value removed

Hadacheck v. Sebastian: Holding/Rules DQ 103 (Uranium) Apply Hadacheck to “Airspace Solution”? • Airspace Solution OK under broader readings of reach of police power. • If Kelso rule applies, raises “Denominator Question”: Do We Look At: – All of Hammonds’s Property (Tiny % Lost) – Only at Underground Reservoirs (100% Lost)